Shortly after President Obama nominated Solicitor General Elena Kagan to the U.S. Supreme Court in May, the Alumni Review asked two Williams political science professors—both alumni, at very different stages of their careers—five questions about the seat to be vacated by John Paul Stevens. Here’s what we learned:
Q. What is the biggest effect that Justice John Paul Stevens’ retirement is likely to have on the U.S. Supreme Court?
James MacGregor Burns ’39: Stevens can’t be replaced by a better justice because of his unparalleled leadership. He took enlightened and liberal positions that will be missed. But Elena Kagan also has a reputation as somewhat of a bridge builder.
Justin Crowe ’03: With Stevens gone, Anthony M. Kennedy would be the senior associate justice in any decisions in which he voted with the Court’s more liberal justices. That status gives him the right to determine who authors the Court’s opinion, a power that has tremendous ramifications for the exact contours of the Court’s judgments.
Q. Justice Stevens has been called one of the last true “ideological mavericks” on the Court. Is it possible or even worthwhile to find a nominee of similar ilk?
JMB: In this day and age it would be very difficult to find another ideological nominee who would be OK’d by the Senate.
JC: Today’s maverick could be tomorrow’s conformist. There’s not much point in seeking an ideological iconoclast just because he or she is an iconoclast.
Q. What issues are likely to take center stage during the confirmation hearings?
JMB: There will be the standard questions about positions Kagan has taken in her writings along with questions about domestic economic policy, foreign policy, procedures, civil liberties and civil rights, and environmental issues. There will also be the usual red herring about “original intent.” It is important to remember that the original framers of the Constitution disagreed about the meaning of the Constitution they had just drafted.
JC: With Kagan as the nominee, the scope of executive power and her lack of judicial experience will almost certainly take prominence.
Q. What lessons from Justice Sonia Sotomayor’s confirmation might inform the process this time?
JMB: Since the Bork hearings (in 1987), any nominee will seek to avoid all controversy.
JC: Watch for Republican senators like Jeff Sessions (Alabama), Jon Kyl (Arizona) and Tom Coburn (Oklahoma) to make frequent reference to Sotomayor and try to depict Kagan as the more liberal and more “activist” of the two—both as a symbolic gesture to their constituents and as a way of making Obama think twice about more liberal appointees either to the Supreme Court or the lower courts.
Q. How important is this nomination for President Obama’s administration going forward? And for the Court?
JMB: Extremely important because of possible crucial issues down the road on which the new justice might have a deciding vote—from presidential war power to immigration policy to financial regulation and civil liberties.
JC: As the first major post-healthcare battle, this nomination will signal how the Obama administration and its Republican opponents intend to deal with one another going forward. In that way, it is one of the earliest indications of how the remainder of Obama’s first term might unfold and the two parties might approach the 2012 presidential election.
James MacGregor Burns ’39 is the Woodrow Wilson Professor of Government, emeritus. The Pulitzer Prize-winning presidential biographer and leadership studies pioneer published Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court in June 2009, a month before Justin Crowe ’03 joined the Williams faculty, having completed his doctorate at Princeton. Much of Crowe’s work focuses on the role of the Constitution and the Supreme Court in American political development, and he is at work on the book Building the Judiciary: Law, Courts and the Politics of Institutional Development.